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ECHEVARRIA v. CAREY

August 29, 1975

Antonia ECHEVARRIA, Individually, and on behalf of all others similarly situated, Plaintiff,
v.
Hugh CAREY, Individually, and as Governor of the State of New York, et al., Defendants



The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, District Judge.

 Plaintiff challenges the validity of section 186 of New York State's Election Law *fn1" as applied to her and others of her class. Plaintiff acquired voting residence in New York after the November 1974 general election, thereby entitling her to vote in the oncoming election in November 1975; however, section 186, which requires that voters must have enrolled in a party at least thirty days prior to the last general election in order to vote in the following primary, in effect forecloses her from voting in the primary election to be held on September 9, 1975. The issue -- whether section 186 so applied imposes an unconstitutional durational residence requirement -- was before the Supreme Court in Rosario v. Rockefeller2 but was not passed upon since the Court found that plaintiff in that action lacked standing to raise it.

 The parties agree that upon the facts here presented, the matter is ripe for summary judgment determination. The plaintiff moves for such relief pursuant to Rule 56 and also for a class action certification pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure. *fn3"

 Plaintiff resided in New York City for sixteen years from 1951 through October 1967, during which period she was a registered voter and enrolled as a member of the New York State Democratic Party. In October 1967, she moved to the Commonwealth of Puerto Rico where she remained until January 1975, when she returned to New York City and again took up residence there. On March 4, 1975, she registered to vote *fn4" and enrolled in the Democratic Party at the central office of the Board of Elections in New York City. She was then informed by a representative of the Board of Elections that she was ineligible to participate in the New York State Democratic primary to be held on September 9, 1975, because she was not an enrolled member of the party as of thirty days prior to the November 1974 general election.

 Section 187 of the New York State Election Law contains a special enrollment provision which permits one who acquired the necessary residential requirements after the last general election to enroll, but subdivision 6 of section 187 restricts such special enrollment "to the same county the voter resided in at the preceding year." *fn5" While a surface reading of the restriction "to the same county the voter resided in at the preceding year" suggests that it is inapplicable to plaintiff and others of her class, who were not residents of the state at the last preceding general election and who therefore could not have been registered or enrolled in any county of the state, the New York State Court of Appeals has upheld a lower court ruling that subdivision 6 of section 187 also applies to out-of-state residents who arrive here after the cutoff date. *fn6" This Court, of course, is bound by that ruling. *fn7"

 Thus the Court's inquiry is directed to section 186, which in substance provides that, for a registered voter to participate in a party's primary, he must enroll at least 30 days before the general election by depositing his enrollment blank in a locked enrollment box which is not opened until the Tuesday following the general election when his enrollment is entered on the official registration books. Since plaintiff was not a resident of New York State in November 1974, she was not eligible to vote at that election and there was no way for her to register or enroll in any party thirty days before that election as required by section 186. Having met residency requirements after the November 1974 election, she was duly registered and is now entitled to vote at the oncoming general election to be held in November 1975. But, under New York's interpretation of sections 186 and 187, she is barred from voting in the September primary, even though at that time she will have been enrolled as a member of the Democratic Party since March 1975. The earliest primary she will be eligible to vote in is the presidential primary in 1976.

 Accordingly, plaintiff seeks a declaration that defendants' refusal, under color of sections 186 and 187, to permit her and members of her class to participate in the September 1975 primary election is an unconstitutional durational residence requirement which abridges their right to participate in the electoral process, impinges upon their right to travel, and denies them equal protection of the laws in violation of the First and Fourteenth Amendments to the Constitution of the United States and Article IV, section 2 thereof. *fn8" The issue is confined to plaintiff and other newly established residents of the state who, lacking the necessary residential qualifications, could not have voted at, or enrolled in a party prior to, the last general election, but who thereafter having attained the required residential qualifications are entitled to vote at the next general election, but nonetheless foreclosed from voting in the primary preceding that general election. The net effect of sections 186 and 187 as applied to plaintiff and members of her class is to impose a durational residency requirement of up to eleven months in order to be eligible to vote in the September 1975 primary election. *fn9"

 The right to vote in a primary election is as important as the right to vote in a general election and as such is similarly protected against state action. *fn10"

 As recently stated by the Supreme Court:

 
"there can no longer be any doubt that freedom to associate with others for the common advancement of political beliefs and ideas is a form of 'orderly group activities' protected by the First and Fourteenth Amendments. * * * The right to associate with the political party of one's choice is an integral part of this basic constitutional freedom" *fn11"

 and clearly encompasses the right to vote in primary elections.

 It cannot be seriously challenged that the period between the cutoff date for enrollment -- at least thirty days prior to a general election and the ensuing primary election in the following year -- eleven months in the instance of plaintiff and those of her class, is "lengthy." *fn12" The practical effect of sections 186 and 187 as applied to plaintiff is to work an absolute bar on plaintiff's right to associate with others who share her political beliefs by foreclosing her from voting at the September 9, 1975 primary. No act or conduct of plaintiff herself has resulted in the deprivation of that right, except the lack of the eleven-month durational residence. Unlike the plaintiff in Rosario, plaintiff here did not lose her right to enroll by her own neglect. Upon resumption of her residence in New York some three months after the deadline for enrollment expired, there was no way under New York law that she could have enrolled so as to be eligible to vote in the September 9, 1975 primary. It is the application of section 186 alone that bars her from voting.

 The initial question is whether section 186 is to be tested by the rational basis standard or by a more stringent standard of review. *fn13" Since the statute effectively deprives plaintiff of the right to participate in the ensuing primary election and to associate with others for the common advancement of their political views and beliefs, the statute is subject to a rigid standard of review and at a minimum must be "found reasonably necessary to the accomplishment of legitimate state objectives in order to pass constitutional muster." *fn14" In other words, is the eleven-month minimum residence requirement that is imposed upon plaintiff as a newly established resident of the State of New York before she is eligible to voice her preference in her party's primary election "necessary to promote a compelling governmental interest"? *fn15"

 The state justifies its law as reasonable in order to assure the integrity of the electoral process, essentially by preventing "raiding" or "crossing over" by members of one political party to another primarily for the purpose of affecting the results in the raided party so as to weaken its candidates at the general election. There can be no question that this is a valid purpose and that the prevention of "raiding" reflects a compelling state interest. *fn16" However, recognizing that important interest does not resolve the constitutional issue; in the protection of that interest the state "cannot choose means that unnecessarily burden or restrict constitutionally protected activity". *fn17" ...


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